The U.S. Supreme Court Deals Victims of Generic Prescription Drug Failure To Warn A Knockout Blow.

As every New York prescription drug lawyer knows, prescription drug suppliers don’t always do a stellar job warning their customers about risks associated with their products. In fact, sometimes they do a plainly lousy job. And that can cause serious injury, or even death, to prescription drug users.

But every wrong has a legal remedy, right? Who could disagree with that?

The Supreme Court of the United States, that’s who. Last Thursday the U.S. Supreme Court, by a 5 to 4 vote, in a case called Pliva v Mensing, , ruled that the makers of generic drugs (as opposed to brand-name drugs) may not be sued for faulty or inadequate warning labels. This is surprising, to say the least, since two years ago the same Court, in Wyeth v Levine, reached an opposite conclusion regarding the makers of brand-name drugs.

The reason for the disparity in treatment? The majority in the Pliva case says that brand-name drug companies can change the labels on their products without seeking permission from the FDA, while generic drug makers cannot. True enough (one of the idiosyncrasies of Federal drug law), but this recent court ruling does not allow consumers to sue generic drug makers even where they can show they failed to make diligent efforts to solicit permission from the FDA to change their labeling when they saw a problem emerging. Instead, they can sit back and relax — while you lie down and die.

Even the Court seems to recognize the absurdity of having one rule for brand-name drugs and another for generic drugs. Justice Clarence Thomas, who wrote the majority opinion in PLIVA, admitted the distinction between generic and brand-name drugs “makes little sense.”

I agree. New York prescription drug lawyers agree. And if you or someone you love gets sick or dies because of faulty warnings on generic prescription drugs, you will agree, too.